When capital punishment was halted in the United Sates by the Supreme Court in 1972, Justice Thurgood Marshall cautioned against relying too heavily on public opinion polls that measure the attitudes of a specific punishment based on "its mere mention." Justice Marshall believed correctly that most Americans knew too little about the death penalty and its workings for such an exercise to be an accurate reflection of the public's morality and sense of justice.
In the years that followed, support for the death penalty skyrocketed, peaking in 1994 with 80 percent of the population supporting its use, according to Gallup. Now a poll confirms, what many close to this issue already believed, that support for the death penalty is on the decline -- at 60 percent -- the lowest level of support for the practice in 41 years, according to Gallup's analysis. Moreover, in polls that present more information about the death penalty to respondents, including alternatives to capital punishment, majority support for the practice vanishes.
Justice Marshall's premise that an informed citizen will come out in favor of justice is correct. In the decades that followed capital punishment's eventual reinstatement in the U.S., details about the problems that plague it have persisted. Most prominent among the concerns is the risk of executing the innocent. Over a period of years, regular news reports about wrongful capital and non-capital convictions have shaken public confidence in the criminal justice system.
A case in point is Illinois where after 13 exonerations from death row, Republican Governor George Ryan issued a moratorium on the death penalty in 2000. In 2011, the state officially abolished the death penalty. When signing the new law, Democratic Governor Pat Quinn said, "As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government."
Doubts about the guilt of Troy Davis in Georgia also spiked a new wave of opposition and concern in the weeks leading up to his execution in 2011. A previously untapped base of opposition to the death penalty began speaking out on social media, to family and friends and on the streets in protest of Davis's execution. And Georgia's decision to proceed with his execution, despite the pleas of millions, has created a lasting shift in the political landscape of this issue.
Indeed, Gallup has documented a steady increase in the percentage of people who consistently oppose the death penalty. Opposition has increased from 16 percent in 1994 to 35 percent today. Moreover, those who believe that the death penalty is administered unfairly stands at 40 percent.
The over 90 million adults who either oppose or question the death penalty is becoming increasingly diverse -- spanning the gaps of political parties, class and race. Most importantly, fueled by moral or practical concerns about unfairness, this constituency is finding its voice and taking its rightful place in the debate about this issue. For example, in New Hampshire, repeal legislation to be considered there in early 2014 has its best opportunity for passage since advocates began their legislative fight for repeal over 10 years ago. The initiative has broad bipartisan support, including from Libertarians, pro-life social conservatives and progressive leaders. New Hampshire's Democratic Governor Maggie Hassan has also gone on record about her opposition to the death penalty. If successful, New Hampshire would join six other states that have rejected the death penalty in recent years.
These developments should give hope to everyone concerned about a sounder approach to justice and public safety. For too long the death penalty has operated with its own protective Teflon coat without accountability for an unacceptable track record for error. The growing constituency of opposition to capital punishment is and will increasingly hold policymakers accountable for the care and attention paid to the facts.
That is why we have seen the death penalty rejected in virtually every state that has had an informed and thoughtful process for studying the merits of the practice.
When the Supreme Court does finally rule that the death penalty is inconsistent with "evolving standard of decency... that mark the progress of a maturing society," Justice Marshall's deep respect and trust in the wisdom and innate fairness of the American public will finally be vindicated.